Copyright Law: Spring 2002 Professor Susanna Fischer CLASS 10 February 10, 2003

SECOND GENERATION SOFTWARE CASES To what extent can competitors copy nonliteral elements, such as program’s underlying structure, sequence, or organization. How far does copyright protection extent beyond the literal elements of a work?

NON-LITERAL COPYING Should non-literal copying of computer software be protected under copyright law? What are the economic arguments in favor and against this? What about the jurisprudential arguments?

NON-LITERAL COPYING In Nicholls v. Universal Pictures (2d Cir. 1930), Judge Learned Hand made clear that non-literal copying could be actionable for literary works. He stated that copyright “cannot be limited literally to the text, else a a plagiarist would escape by immaterial variations”.

Whelan Associates v. Jaslow Dental Laboratory, Inc. (3d Cir. 1987) Involves computer program for operation of dental lab First case about nonliteral copying of computer software Issue: How do you separate idea from expression? What was the Whelan rule for doing this?

Whelan Associates v. Jaslow Dental Laboratory, Inc. (3d Cir. 1987) Third Circuit said that idea of program was its purpose or function - so idea was efficient management of a dental lab. Treated computer programs like literary works Heavily criticized Do you think it is a sensible rule?

Computer Associates Int’l v. Altai, Inc. (2d Cir. 1992) Was there access? Did the Court follow Whelan? Why or why not?

Computer Associates Int’l v. Altai, Inc. (2d Cir. 1992) What was the correct test for nonliteral copying of computer software? Is this a good test? Should we follow it for novels? Does it adequately reflect the fact that copyright protection exists for selection and arrangement? How would the Whelan case have come out if the Altai approach was applied?

Computer Associates Int’l v. Altai, Inc. (2d Cir. 1992) What was the correct test for nonliteral copying of computer software? A successive filtration approach called “Abstraction, filtration, comparison” Abstraction of P’s program, filtration of nonprotectable elements, comparison of remaining “golden nugget” and D’s work.

MORE on COMPUTER ASSOCIATES Can programs with little protectable material be freely copied under the Altai test? Many commentators, e.g., Pamela Samuelson, have praised Altai’s approach. Many large computer companies dislike it. Nevertheless it has been adopted by many courts

SUBSEQUENT JUDICIAL ADOPTION OF ALTAI Unfortunately, not all courts have approached the abstraction-filtration- comparison analysis in precisely the same way The 10th Circuit, in Gates Rubber is well- known for having moved beyond Altai

GATES RUBBER (10th Cir. 1993) Court gives further content to abstraction test - identifies 6 levels of gradually declining abstractions Court also gives further content to filtration part of Altai analysis

Lotus v. Borland (1st. Cir. 1995) Question - is Lotus’ computer menu command hierarchy copyrightable? First Circuit: “[w]hile the Altai test may provide a useful framework for assessing the alleged nonliteral copying of computer code, we find it to be of little help in assessing whether the literal copying of a menu command hierarchy constitutes copyright infringement.”

Lotus v. Borland (1st. Cir. 1995) Nimmer says - “For a brief moment, the matter seemed poised for adjudication before the Supreme Court. The matter passed, however, with no guidance from that tribunal. The final word on this standard accordingly still remains to be pronounced.”

IP Protection for Software Other than copyright, what kinds of intellectual property protection is now available for software? Is the current regime for protection of computer software satisfactory? Why or why not?

AUTHORSHIP 3 possible philosophical concepts of authorship: A. Conception of the work B. Execution of the Work C. Financing the Work Which does the Lindsay court choose? [REMEMBER: Copyright is a form of INTELLECTUAL PROPETY!]

Lindsay v. R.M.S. Titanic et al. Who is Lindsay? What is the allegdly copyrighted work? Did the S.D.N.Y. find that Lindsay was the author of the work under federal copyright law? Whose arguments don’t “hold water”? 

AUTHORSHIP JOINT WORKS WORKS MADE FOR HIRE A. Conception of the work B. Execution of the Work C. Financing the Work The Lindsay decision reflects the predominant view preferring A over B. However, according to the work made for hire doctrine, C may also be a crucial determinant of authorship

JOINT WORKS What’s a joint work? See s. 101 definition What rights does each co-author of a joint work have? (See section 201)

SECTION 101 A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”

SECTION 201 The authors of a joint work are co-owners of copyright in the work.

RIGHTS OF JOINT AUTHORS Each has equal and undivided interest in work Each has right to use or license work as so wishes Duty to account to other joint author

Aalmuhammed v. Lee (9th Cir ) Did the court agree with Aalmuhammed’s contention that Malcolm X was a joint work and he was a joint author? Why or why not?

JOINT WORKS Is collaboration enough to establish joint authorship?

INTENTION REQUIREMENT: JOINT WORKS Independently copyrightable contribution (Goldstein test not Nimmer test) AND “intention at the time the writing is done that parts be absorbed or combined into an integrated unit” Joint authorship can be manifested in a written agreement. What if there is no written agreement?

WRAP-UP: INTENTION TEST FOR JOINT WORKS If there is no written agreement between the authors, there is a 2 pronged test to determine whether there is joint ownership (Childress, Thompson) A P trying to establish co-ownership must establish: 1. Each putative co-author made independently copyrightable contributions to work 2. Each putative co-author fully intended to be a co-author

MORE ON INTENTION TEST The joint work intention test is not just SUBJECTIVE. You must look at the relationship -- e.g. how the collaborator regarded herself in terms of billing and credit, decisionmaking, and right to enter into contract